Sexual harassment at camp: reducing liability

Camping Magazine, Sept-Oct, 2003 by Linda Oakleaf, Angela Johnson Grube

At its best, camp is a place for campers and staff to form connections and friendships that can last a lifetime. Although these visions of a cohesive camp community guide organizations seeking to create a safe space, the truth is that sexual harassment is endemic to the American workplace. More than a decade after the Anita Hill/Clarence Thomas hearings brought nationwide attention to the issue, sexual harassment continues to be an issue employers need to address. Indeed, around 40 percent of workplace discrimination lawsuits involve allegations of sexual harassment (Joyce 1998).

Nevertheless, when camp administrators assess their potential for liability, they generally look to their facilities, transportation, and staff qualifications and certifications. Because of the perception of camp as a safe space, the possibility of employer liability for sexual harassment perpetrated by staff members may be overlooked. To protect their employees' and their own interests, administrators should think seriously about addressing the issue. The number of sexual harassment charges filed with the Equal Employment Opportunity Commission and state fair employment practices agencies has risen in recent years. In 1991, 6883 sexual harassment charges were filed. This can be compared with 15,618 in 1998 (Enforcement Guidance on Vicarious Employer Liability 2003). Such a jump in the figures simply emphasizes the fact that, like any employer, camps need to anticipate that they may be affected and find ways to minimize their liability.

Understanding Vicarious Liability

Employers are liable for the actions taken by their employees in the workplace through the doctrine of vicarious liability. Black's Law Dictionary defines vicarious liability as "liability that a supervisory party (such as an employer) bears for the actional conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties" (Garner, 1999, p. 927).

In Burlington Industries, Inc. v. Ellerth, (1998), and Faragher v. City of Boca Raton (1998), the Supreme Court ruled that employers are specifically subject to vicarious liability for the sexual harassment perpetrated by a supervisor. The decisions stated that an employer is responsible for the acts of its supervisors and that employers should be encouraged to prevent harassment in the first place. In addition, employees should be encouraged to avoid or reduce the harm from harassment. The question of liability only arises once it has been determined that unlawful harassment has occurred and only when the harasser is in a supervisory position over (directly or indirectly) the employee being harassed.

It is important to note that the law does not prohibit one-time comments, or simple teasing, but rather it is aimed at conduct which is severe enough to create a hostile work environment (Enforcement Guidance on Vicarious Employer Liability, 2003). In such cases of more serious conduct, the Court held that an employer is always liable for a supervisor's harassment if it results in an action such as firing, the failure to promote, undesirable reassignment, or a decision causing a significant change in benefits or compensation (Burlington Industries v. Ellerth, 1998, and Faragher v. City of Boca Raton, 1998).

However, if the harassment does not involve one of these tangible actions, an employer may be able to limit or avoid liability by showing that he/she exercised reasonable care to prevent and correct any harassing behavior in a timely fashion and that the employee then unreasonably failed to take advantage of any preventive or corrective actions provided by the employer to remedy harm. This puts the ball, at least partly, in the employee's court. If the sexual harassment does not involve a tangible result like firing and if the employee does not act to address the harassment via the channels set up by the employer, then the employer can use that fact as a way to limit the organization's own liability (Burlington Industries v. Ellerth, 1998, and Faragher v. City of Boca Raton, 1998). More important, as ethical employers, camps should work to reduce the possibility of harm to their employees.

Steps to Reduce Liability

Camps can take the following concrete steps to reduce liability:

* Provide employees with multiple channels through which to report sexual harassment to ensure that an employee will be able to report harassment should the perpetrator be the person to whom he/she would normally report a grievance.

* Feature the procedures for reporting sexual harassment prominently in the staff handbook; this will help establish a paper trail to indicate that sexual harassment will not be tolerated at your camp and that there are channels by which policy violations can be reported. The procedures for reporting sexual harassment can often be worked into any grievance procedure already in use.

* Include an explanation of the procedures and a strong statement that sexual harassment will not be tolerated in staff training so that staff members know the standards of behavior expected of them and where they can get help.